DePaul Law Review Volume 34 Issue 2 Winter 1985 Article 3 Use of Foreign Statutes of Limitations in Illinois: An Analysis of Statutory and Judicial Technique Jane Hoffman Locke Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Jane H. Locke, Use of Foreign Statutes of Limitations in Illinois: An Analysis of Statutory and Judicial Technique, 34 DePaul L. Rev. 409 (1985) Available at: https://via.library.depaul.edu/law-review/vol34/iss2/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. USE OF FOREIGN STATUTES OF LIMITATIONS IN ILLINOIS: AN ANALYSIS OF STATUTORY AND JUDICIAL TECHNIQUE Jane Hoffman Locke* INTRODUCTION Kathy Keeton, a New York resident, filed suit for libel and invasion of privacy against Hustler Magazine, Inc. in Ohio, where Hustler's headquarters are located. The Ohio court dismissed the libel claim as barred by the Ohio statute of limitations, and the privacy claim as barred by the New York statute of limitations.' Apparently undaunted by the setback, Ms. Keeton located the only state which had an unexpired statute of limitations for libel, New Hampshire. Fortunately for Ms. Keeton, Hustler sold 10 to 15,000 copies of its magazine in New Hampshire each month and possibly was subject to its jurisdiction 2 on that basis even though the parties had no other contacts with the state. Ms. Keeton promptly filed suit in the United States District Court for the District of New Hampshire. The New Hampshire district court and the First Circuit held that it would be unfair to subject Hustler to New Hampshire jurisdiction because of the plaintiff's obvious forum shopping.' The First Circuit concluded that "the 4 New Hampshire tail is too small to wag so large an out-of-state dog." The Supreme Court reversed the lower courts' decisions in Keeton v. Hustler Magazine, Inc.5 The Court admonished the lower courts that poten- tial unfairness to the defendant Hustler from the use of New Hampshire's statute of limitations was unrelated to New Hampshire's jurisdiction to adjudicate the claim. According to the Court, any unfairness that might arise by applying the New Hampshire statute must be dealt with as a separate 6 choice-of-law issue. While many scholarly articles will dissect the jurisdictional holding of Keeton, its choice of law aspects will receive scant attention. The choice of law implications of Keeton, however, are significant. The Supreme Court repeatedly has refused to consider a plaintiff's choice-of-law forum shopping as a limit on permissible assertion of jurisdictional power;7 this position was * Assistant Professor of Law, Loyola University of Chicago School of Law. B.A., M.A, University of Michigan; J.D., Cornell University. 1. Keeton v. Hustler Magazine, Inc., 104 S. Ct. 1473, 1477 n.l (1984). 2. Id. at 1477. 3. Keeton, 682 F.2d 33, 35 (1st Cir. 1982). 4. Id. at 36. 5. 104 S. Ct. 1473, 1477 (1984). 6. Id. at 1480. 7. See, e.g.,Kulko v. California Superior Ct., 436 U.S. 84, 98 (1978); Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Hanson v. Denckla, 357 U.S. 235, 254 (1958). DEPA UL LA W REVIEW [Vol. 34:409 reaffirmed in Keeton. The Court's refusal to relate choice of law to the permissible limits of jurisdiction encourages plaintiffs to forum shop for favorable law. Because courts routinely apply their own statutes of limitations to out-of-state claims, plaintiffs frequently forum shop for an unexpired statute of limitations-a practice implicitly endorsed by the jurisdictional holding in Keeton. Unfortunately, the Keeton Court did not address the question of whether the use of the New Hampshire limitations period was constitutional as a separate choice of law matter because that issue was not before the Court. Although the Court suggested that such a routine appli- cation of a forum's statute of limitations to a case with minimal connection to the forum was troublesome and perhaps unconstitutional, the Court is not likely to resolve this issue in the near future.' How would Kathy Keeton have fared in an Illinois forum? Illinois has a Borrowing Statute9 that employs a foreign statute of limitations to bar out- of-state claims. The intended purpose of the Borrowing Statute is to prevent forum shopping. Although by its terms, and given its purpose, it should bar a case like Keeton, recent judicial narrowing of the Borrowing Statute's application raises doubts as to whether it would apply. 0 8. 104 S. Ct. at 1480 n.10. The Court stated: There has been considerable academic criticism of the rule that permits a forum State to apply its own statute of limitations regardless of the significance of contacts between the forum State and the litigation .... But we find it unnecessary to express an opinion at this time as to whether any arguable unfairness rises to the level of a due process violation. Id. (citations omitted). 9. Code of Civil Procedure § 13-210, ILL. REV. STAT. ch. 110, § 13-210 (1983). See generally Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. FLA. L. REV. 33 (1962) (expressing dissatisfaction with current status of borrowing statutes); Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes, 32 ROCKY MTN. L. REV. 287 (1960) (discussing two extensive surveys regarding borrowing statutes). For analysis of the borrowing statutes of other states, see Grossman, Statutes of Limitation and the Conflict of Laws: Modern Analysis, ARIZ. ST. L.J. 1, 14 n.Sl (1980) (legislatures have responded to traditional charac- terization of statutes of limitations as procedural by enacting borrowing statutes); Nordstrom, Ohio's Borrowing Statute of Limitations-A Quaking Quagmire in a Dismal Swamp, 16 OHIO ST. L.J. 183 (1955) (discussion of Ohio Borrowing Statute); Siegel, Conflicts of Laws, 19 SYRACUSE L. REV. 235 (1968) (analysis of New York Borrowing Statute in context of choice of laws); Comment, Choice of Law and the New York Borrowing Statute: A Conflict of Rationales, 35 ALB. L. REV. 754 (1971) (discussion of New York Borrowing Statute); Comment, The Impact of Significant Contacts on the Pennsylvania Borrowing Statute, 72 DICK. L. REV. 598 (1968) (analysis of Pennsylvania Borrowing Statute within the context of conflict of laws). Borrowing statutes are by no means uniform. See R. LEFLAR, AMERICAN CONFLICTS LAW § 128, 257 (3d ed. 1977). A 1960 survey of the thirty-eight states with borrowing statutes classified those statutes in 17 separate categories. Vernon, supra, at 294-97. Some states limit application of the statute to cases involving only non-resident parties or non-resident plaintiffs; others bar a claim if it is barred by the law of any jurisdiction in which one, or sometimes both, the parties resided. Still other statutes are limited to certain categories of cases such as contracts, personal injury, or non-real property actions. There are numerous additional varia- tions. See id. 10. See infra notes 22-24, 30-31, 39 and accompanying text. 1985] STA TUTES OF LIMITATIONS 411 This article analyzes the development of Illinois law regarding the selection of a statute of limitations for a conflicts case with multistate contacts. The analysis focuses principally on the use of the Borrowing Statute and its emergence as an obstacle to the modernization of Illinois limitations law. In addition, the article will analyze the use of foreign statutes of limitations in cases not subject to the Borrowing Statute. BACKGROUND-THE PURPOSE OF THE BORROWING STATUTE Illinois enacted its Borrowing Statute in the late nineteenth century and has never amended it. The statute provides that: When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state." The statute prescribes the use of another state's statute of limitations when 2 the court determines that the cause of action has "arisen" in that state. The sole function of the statute is to bar suits which otherwise might be maintained under an unexpired Illinois statute of limitations. The Borrowing Statute does not enable the court to select an unexpired foreign statute of 4 limitations in lieu of an expired Illinois limitations period. 11. Code of Civil Procedure § 13-320, ILL. REV. STAT. ch. 110, § 13-210 (1983). 12. See Speight v. Miller, 437 F.2d 781, 783 n.4 (7th Cir.), cert. denied, 404 U.S. 827 (1971). The statute of limitations is borrowed with "all its accouterments," the tolling provisions of the foreign state, and perhaps its borrowing statute as well. 13. Generally, statutes of limitations vary according to the type of claim brought, and even among identical claims the length of the statutes may differ from state to state. To illustrate, in Illinois oral contract actions must commence within five years after the cause of action has accrued. ILL. REV. STAT. ch. 83, § 16 (1983). A ten-year limitations period applies to written contract actions. Id. ch. 110, § 13-206. Indiana, however, expands the time that a plaintiff may bring a claim for breach of an oral contract to six years, IND. CODE ANN. § 34-1-2-1 (Burns Supp. 1984), and breach of written contract claims, "other than those for the payment of money," may be maintained up to ten years after the cause of action has accrued, id.